California Workplace Flexibility Act Goes Nowhere Fast, Again

Legislators often issue press releases trumpeting their prowess at shepherding a bill into law. A California state senator took a different tack in January 2016 when he publicized the defeat of legislation that would have allowed flexible scheduling.

The California Workplace Flexibility Act of 2016(Senate Bill 368) sought to let employers offer hourly workers a schedule of four 10-hour workdays per week without having to pay overtime. Under current law, hourly employees in California who are on the job more than eight hours in a single day or 40 hours in a week are entitled to pay equal to time-and-a-half for the excess hours.

The bill stalled in the state Senate’s Labor and Industrial Relations Committee. It was yet another in a string of defeats for a measure that’s been introduced and then promptly shot down annually for a decade. Its sponsor, Sen. Tom Berryhill, R -Twain Harte, announced its most recent demise with a press release headlined “Senate Labor Says ‘No’ To Flex-Work Week for CA Employees.”

“It’s like Lucy and the football,” said Littler attorney Christopher Cobey, referring to the “Peanuts” cartoon strip character who taunts Charlie Brown by snatching away a football every time he attempts to kick it. Organized labor’s powerful influence in the legislature sounded the death knell for the bill before it had a chance to gather any momentum. “Politically speaking, with the legislature the way it is, this ain’t going to pass anytime soon,” said Cobey, knowledge management counsel in Littler’s San Jose office.

Protecting the Eight-Hour Workday

Opponents of the bill, which included the California Labor Federation, AFL-CIO, claimed the legislation would undercut the state’s strong worker protection laws and could have led to management coercing employees to waive their right to overtime pay. The eight-hour workday is a “core value and achievement for the labor movement,” Cobey said, “and they feel that to allow what the business community calls ‘flexibility’ is to threaten the eight-hour day.”

Berryhill had championed the measure as family-friendly and environmentally sound, claiming a four-day workweek of 10-hour days would give workers more time with their families while reducing traffic and greenhouse gas emissions. A flexible workweek could have been a boon for businesses, too, making them more attractive to job candidates and boosting employee retention rates. It might even have played a role in reducing wage and hour class-action lawsuits, Berryhill noted, by helping to clarify California’s complex rules governing pay.

California law does sanction one option for flexible scheduling, but only under rigid conditions: All company employees must vote by secret ballot on whether to adopt a flexible schedule. If the measure passes by a two-thirds vote, every employee must switch to the new schedule, which limits a workday to no more than 10 hours in a 40-hour workweek. Flexible scheduling in California is therefore an all-or-nothing proposition for a business; the four-day, 10-hour workweek must be instituted for every worker or none at all.

Berryhill’s bill took a swipe at this limitation, noting: “Workplaces that are unionized already allow workers to choose to work four 10-hour days; however, it is virtually impossible for workers of nonunionized workplaces to enjoy this benefit.”

The Workplace Flexibility Act would have eliminated the secret ballot, the two-thirds vote requirement and the need for a companywide shift to a flexible schedule, instead permitting individual employees to adopt a flexible schedule with management’s permission.

Broad Latitude in Most States

In defining what constitutes a workweek and when overtime pay is triggered, California is an anomaly. The majority of states give workers and employers broad latitude to collaborate and set daily and weekly work schedules. Only Alaska and Nevada also mandate overtime pay for workers who put in more than eight hours in a day, Cobey said. Alaska law requires time-and-a-half pay for workers who exceed eight hours in a day or 40 hours in a week.

Nevada allows any business to offer the so-called 4-10 weekly schedule—four 10-hour days in any given week—provided that both parties agree to it. Though the state’s labor law requires overtime pay when workers below certain pay levels are on the job longer than eight hours in a day, the 4-10 schedule is specifically excluded. (A Nevada Senate billintroduced last year that would have eliminated mandated overtime when workers put in more than eight hours in a day but retained overtime pay for workweeks exceeding 40 hours failed to make its way out of committee.)

Nevada businesses and workers welcome the ability to adopt flexible schedules, and many hourly employees are happy to work four longer work days in exchange for having an extra day off, said Leigh Goddard, a partner in the labor and employment practice of McDonald Carano Wilson of Reno, Nev.

Workplace Flexibility in California

The California Workplace Flexibility Act included several measures it cited as worker protections, including requiring businesses to pay overtime to employees on a flexible schedule who worked more than 10 hours in a day or more than 40 hours in a week. Workers who logged more than 12 hours a day would have collected double pay for those extra hours. The bill allowed either party to discontinue the flexible schedule arrangement by providing written notice. And it excluded workers covered by a collective bargaining unit, including municipal workers.

Despite that concession to organized labor, the measure made no more headway than it had in previous years. Its demise appears to be at odds with hourly workers’ desire for greater scheduling flexibility on the job. “I would love to see a public opinion poll, assuming the question [about adoption of flexible hours] could be asked as completely neutrally as possible,” Cobey said, “because I think people would be in favor of it.”

June D. Bell, a San Francisco-based reporter, covers California labor and employment issues for SHRM.